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Rule 23 order filed
February 14, 2005;
Motion to publish granted
March 17, 2005.

JUSTICE KUEHN delivered the opinion of the court:

Alfred Roby, the defendant, appeals from the denial by the circuit court of ClintonCounty of his motion to withdraw his negotiated plea of guilty to aggravated battery. Heasserts that the trial court committed reversible error when it conducted a hearing on hismotion to withdraw his plea, because the defendant was mentally unfit at the time of thehearing on the motion. He seeks the reversal of the trial court's denial of his postplea motionand a remand of the case to the circuit court with directions to make a determination of hiscurrent mental status and to allow him to participate in a hearing on his motion to withdrawhis plea when he is mentally fit to do so.

On February 25, 2003, the defendant, then an inmate in the Department of Corrections(Department) at Centralia Correctional Center (Centralia), was charged in Clinton Countywith aggravated battery for having struck another inmate with a barbell on November 6,2002. The record substantiates that he was transferred to Menard Correctional Center(Menard) in November 2002. Attorney John Hudspeth (Hudspeth) was appointed torepresent him, and on June 3, 2003, the defendant entered a negotiated plea of guilty toaggravated battery in exchange for a recommendation of a sentence of three years'imprisonment. The defendant participated in the plea process by providing what were inessence "yes" or "no" answers to the court's inquiries. The preliminary hearing testimonyof a Department employee about the defendant's act of striking another inmate with a 30-pound barbell was utilized by the court as the factual basis for the plea. The court wasinformed about the defendant's criminal history and accepted the plea. The defendant wassentenced to a term of three years in prison, to be served consecutively to the sentence forretail theft for which he was then incarcerated.

On June 26, 2003, the defendant filed a pro se motion to withdraw his plea and vacatehis sentence. He contended that his plea was entered while he was mentally incompetent dueto the conditions under which he was being held in segregation at Menard, where he wassubjected to ill treatment at the hands of other prisoners and the correctional officers, whowere conspiring to extend his time in custody and disregarding his medical needs. JosephHeiligenstein (Heiligenstein) was appointed on July 1, 2003, to represent the defendant onhis motion to withdraw his plea. On September 5, 2003, counsel filed a motion to withdrawthe plea and a certificate pursuant to Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)). OnOctober 16, 2003, counsel moved for a fitness examination and a fitness hearing. Themotion was granted on November 3, 2003.

On November 12, 2003, S. D. Parwatikar, M.D., examined the defendant. On January7, 2004, he filed a report that was dated December 2, 2003. The report related that thedefendant had been diagnosed and treated for bipolar disorder and paranoid schizophreniasince the age of 36, that he was periodically treated by the Department for his mental illness,that he had been transferred from Centralia to Menard in November 2002, and that after histransfer to that prison he refused to take the medication that was prescribed by Dr. MirzaBaig, the chief psychiatrist at Menard. Dr. Parwatikar diagnosed the defendant as being aparanoid schizophrenic who exhibited acute symptomology due to his refusal to accept thetreatment provided for him at Menard by Dr. Baig. The doctor found that the defendant'smental status rendered him unfit to stand trial. He lacked the capacity to assist his attorneyin his defense, but if medicated, he would respond to medications and return to fitness. Dr.Parwatikar also filed a letter in which he related that Dr. Baig had confirmed that thedefendant was being treated for bipolar disorder, not otherwise specified, and substance-induced mood disorder and that he had paranoid and persecutory delusions. Dr. Baig hadalso confirmed that the defendant had been hospitalized a number of times from 1979forward for mental health reasons. Dr. Baig stated that at times the defendant did agree totake his medication but that even when he took his medication, he did not take it in themanner in which it was prescribed.

On January 5, 2004, defense counsel filed an amended motion to withdraw thedefendant's plea. The amended motion reasserted the prior allegations and added theallegation that the defendant was mentally unfit to enter his plea.

The defendant's motion to withdraw his plea was heard on January 8, 2004. Dr.Parwatikar testified that the defendant was delusional and exhibited paranoid and persecutoryideation, that he was not capable of imparting information in a rational and factual mannerwhen the doctor examined him on November 12, 2003, and that he was not feigning mentalillness. The doctor related that it was impossible to discern whether the defendant's refusalto take his antipsychotic and antianxiety medication was sporadic or continuous. Dr.Parwatikar believed that the defendant could become capable of communicating effectivelywith his counsel if he took his medication. The doctor used the term "fit to stand trial" todescribe the mental state that was desired for the defendant, although he was admittedly notbeing examined in order to determine whether a prosecution could proceed against him. Hewas unable to retroactively assess the defendant's mental condition or to state whether or notthe defendant was able to assist in his defense on June 3, 2003, when he entered his guiltyplea.

Attorney Hudspeth was called to testify. When Hudspeth questioned whether thedefendant had waived the attorney-client privilege, Heiligenstein stated that he needed tospeak with the defendant about whether he wished to waive the privilege but that he did notknow whether or not the defendant could assist Heiligenstein. A recess was taken to allowHeiligenstein to confer with the defendant. The proceedings resumed without any discussionof whether the defendant was capable of waiving attorney-client confidentiality or if he hadin fact agreed to do so. Hudspeth testified about the circumstances surrounding thedefendant's entry of the plea. He asserted that he and the defendant had discussed the factsof the case and his legal options, they had discussed two different offers that had been madeby the State, and the defendant "seemed very pleased and relieved and satisfied" when heentered his plea. Hudspeth testified that at the time of the plea he had no questions about thedefendant's mental ability to understand the charge against him or his ability to assist hiscounsel and that he would not have allowed the defendant to plead if doubts about his mentalstatus had been present. Hudspeth recognized that the defendant was emotionally troubled,and he knew that the defendant had a history of being medicated by prison physicians, buthe could not state whether the defendant had been taking medications at the time that heentered his plea. Hudspeth admitted that the defendant was emotionally distraught when hespoke with him about the case, but the attorney was certain that the defendant was notemotionally distraught when he pleaded guilty. Hudspeth would have sought a fitnessexamination if he had believed that the defendant was unfit to plead guilty.

The court took judicial notice of the transcripts of the preliminary hearing and theguilty plea, the contents of the court file, and Dr. Parwatikar's report and letter. Itcharacterized the proceeding before it as a fitness hearing "in kind of an indirect way." Defense counsel argued that the defendant was unfit at the time that he pleaded guilty andthat thus he was entitled to have his guilty plea vacated. The State contended that thedefendant had failed to meet his burden of proof in regard to his allegation that he was unfitto enter his plea despite the fact that the evidence seemed to establish that the defendant wasunfit to assist his counsel at the hearing taking place. The court took the matter underadvisement, and on March 5, 2004, it made an extensive docket sheet entry in which itdenied the defendant's motion to withdraw his plea.

On appeal, the defendant contends that he is entitled to the vacation of the denial ofhis motion to withdraw his guilty plea because the court committed reversible error byholding a hearing on his motion to withdraw his plea at a time when the defendant was unfitto assist his counsel in presenting his case. He seeks the remand of his case for a newhearing on his motion to withdraw his plea when he is mentally fit to participate in hisdefense. The defendant urges the court to address the issues despite the fact they might beconsidered to have been waived through counsel's failure to seek a continuance of thehearing. In the alternative, he asserts that posttrial counsel provided inadequate assistanceby proceeding with the hearing at a time when the defendant was unfit to participate in hisown defense, warranting the consideration of the issue that could otherwise be deemed tohave been waived.

The State concedes that statutory law and case law "suggest" that the provisions forthe appointment of counsel to represent a defendant in posttrial proceedings are meaninglessif a defendant is mentally unfit to rationally communicate with counsel. It contends that inthe case at bar the defendant's alleged unfitness at the time of the hearing on his motion towithdraw his plea did not prejudice the defendant's cause because his counsel competentlyrepresented him at the hearing in regard to matters that were of record and the recordsupported the conclusion that he had been fit to enter his guilty plea. It argues that anyclaims that might be based on extrarecord personal recollection or information that is knownonly to the defendant may be litigated via the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2002)) when he becomes mentally fit. The State does not address in its briefthe possibility that procedural default precludes the consideration of the issues on appeal,thereby procedurally defaulting any contention that the issue before the court has beenwaived or procedurally defaulted.

Whether to permit a guilty plea to be withdrawn is within the sound discretion of thetrial court, whose decision will not be disturbed on appeal absent an abuse of discretion. People v. Church, 334 Ill. App. 3d 607, 615, 778 N.E.2d 251, 257 (2002).

After accepting a negotiated plea of guilty, a court must comply with Supreme CourtRule 605(c) (188 Ill. 2d R. 605(c)). Rule 605(c) provides, in relevant part, that the trial courtmust advise the defendant:

"(1) that the defendant has a right to appeal;

(2) that prior to taking an appeal the defendant must file in the trial court,within 30 days of the date on which sentence is imposed, a written motion asking tohave the judgment vacated and for leave to withdraw the plea of guilty, setting forththe grounds for the motion;

(5) that if the defendant is indigent, a copy of the transcript of the proceedingsat the time of the defendant's plea of guilty and sentence will be provided without costto the defendant and counsel will be appointed to assist the defendant with thepreparation of the motions." 188 Ill. 2d R. 605(c).

The provision by the supreme court for appointed counsel at the posttrial motion stageis indicative of the supreme court's continuing concern for the constitutional rights ofdefendants, even after they have lost the presumption of innocence.

The defendant's appointed counsel properly became concerned about the defendant'smental status and obtained a psychiatrist's assessment that concluded that the defendant wasincapable of communicating effectively and rationally with counsel. That assessment, whichwas unrebutted at the hearing on his motion to withdraw his plea and is not challenged onappeal, established that the defendant was in fact mentally unfit at the time of the hearing. The State recognizes that parallels exist between the instant case and the situation thatwas presented in People v. Owens, 139 Ill. 2d 351, 564 N.E.2d 1184 (1990). There, thesupreme court held that the trial court was obligated to consider whether a postconvictionpetitioner was mentally competent to consult with his appointed counsel at the time hispostconviction petition was considered by the trial court. The Illinois Supreme Court heldthat the appointment of counsel by the court is meaningless, "an empty formality," if adefendant in postconviction proceedings is unable due to mental unfitness to communicatewith counsel in a rational manner. Owens, 139 Ill. 2d at 359-60, 564 N.E.2d at 1187. TheOwens case was remanded to the lower court to allow it to determine, from facts brought toits attention by either the defendant's counsel or its own observations, whether there was abona fide doubt about the defendant's mental ability to communicate with his postconvictioncounsel. If such a doubt existed and if a psychiatric examination and an evidentiary hearingdisclosed that the defendant was incompetent to consult with his postconviction counsel, thedefendant was to be remanded to the Department until he was rendered fit to consult withcounsel in the presentation of his postconviction petition. Owens, 139 Ill. 2d at 366, 564N.E.2d at 1190.

In the instant case, unlike Owens, the trial court did not resist counsel's efforts to havehis client's mental status evaluated. Once the evaluation was completed and Dr. Parwatikarhad testified, defense counsel, the State, and the court were on notice that the defendant wasincapable of meaningfully assisting his counsel in the presentation of his postplea motion towithdraw his plea. The court characterized the proceedings as being "kind of like" a fitnesshearing. It was, in fact, the functional equivalent of a fitness hearing pursuant to section 104-11 of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-11 (West 2002)). Despiteits knowledge that the defendant was unfit to assist his counsel in the presentation of hismotion to withdraw his plea, the court allowed the defendant's guilty plea counsel to testifyabout his interactions with the defendant prior to and at the time of the entry of his guiltyplea. Given that the defendant was unfit to assist his posttrial counsel, it is intuitivelyobvious that the defendant could not have made a valid waiver of the attorney-clientprivilege. His counsel's testimony, which was elicited after counsel had expressed concernabout whether or not he could legitimately testify, violated the trust that the defendant placedin him. The trial court failed to fulfill its duty to protect a defendant who was not capableof protecting himself. Posttrial counsel also failed to protect his client's interests byneglecting to object to Hudspeth's testimony where the defendant was incapable of assistinghis posttrial counsel, particularly when the trial court appears from the record to have basedits decision to deny the defendant's posttrial motion in large part on Hudspeth's testimonyabout his interactions and retroactive assessment of the defendant's mental status.

The State contends that the trial court properly concluded that the defendant's motionto withdraw his plea was without merit because the transcript of the plea proceedingssupported the conclusion that the defendant was competent to assist his counsel at the timeof the plea. It asserts that the defendant's answers to the court's questions were "responsive,and not merely rote yes or no answers." This court's reading of the transcript of the pleaproceedings leads to the conclusion that the defendant's answers to the court's inquiries wererote replies. No response required any real elaboration on the part of the defendant. The factthat he told the court that he was 52 years old in response to a question about his age and thathe had "12 and a half years" of schooling in response to a question about his education doesnot detract from this conclusion.

The State argues that even if the court had actually made a formal ruling that thedefendant was incompetent on the day that his motion to withdraw his plea was argued, hisappointed counsel argued the motion competently and adequately represented the defendant. The State maintains that if in the future the defendant regains his competence and rememberssome other grounds for the withdrawal of his plea, he can raise the issue in a petition forpostconviction relief. See Owens, 139 Ill. 2d at 366, 564 N.E.2d at 1190.

The case at bar, unlike Owens, is a direct attack, not a collateral attack, on thedefendant's conviction. It is reasonable to assume that a defendant must have his wits abouthim and be able to assist his counsel to very nearly the same degree when his motion towithdraw his guilty plea is heard as was necessary at the time that his guilt or innocence wasdetermined. The defendant's mental status put him at a disadvantage in the presentation ofhis motion to withdraw his plea. He could not cooperate with posttrial counsel, and he couldnot competently make the decision to waive the attorney-client privilege with plea counsel,to which he was entitled. The logical parallels between this case and the Owens casemandate that the trial court's denial of the defendant's motion to withdraw his plea be vacatedand that the cause be remanded to the circuit court with directions to ascertain whether thedefendant has become competent to assist appointed counsel. If and when he becomescompetent to do so, new proceedings on his amended postplea motion may be conducted.

For the foregoing reasons, the denial of the defendant's posttrial motion is vacated,and the cause is remanded to the circuit court of Clinton County with directions.

Vacated; cause remanded with directions.

DONOVAN, P.J., and CHAPMAN, J., concur.

Rule 23 Order Filed: February 14, 2005

Motion to Publish Granted: March 17, 2005

Opinion Filed: March 17, 2005

Justices: Honorable Clyde L. Kuehn, J.

Honorable James K. Donovan, P.J., and

Honorable Melissa A. Chapman, J.,

Concur

Attorneys Daniel M. Kirwan, Deputy Defender, Edwin J. Anderson, Assistant Defender, Office

for of the State Appellate Defender, 730 E. Illinois Highway 15, Suite #1, Mt. Vernon,

Appellant IL 62864

Attorneys Hon. Henry Bergmann, State's Attorney, Clinton County Courthouse, Carlyle, IL

for 62231; Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kendra S.

Appellee Peterson, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730

E. Illinois Highway 15, Suite #2, P.O. Box 2249, Mt. Vernon, IL 62864